Before : Deputy High Court Judge McMahon in Court

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J U D G M E N T

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1. This is an appeal against conviction only.  The appellant was convicted after trial of an offence of making persistent telephone calls, contrary to section 20(c) of the Summary Offences Ordinance, Cap.228 (“the Ordinance”).

2. The charge was particularised in the following terms :

“YAU CHIU-MING, you are charged that between 1^st day of May, 2001 and 18^th day of June, 2001, in Hong Kong, you did without reasonable cause persistently make telephone calls to LEUNG Chung-hong for the purpose of causing annoyance to him.”

In other words, the appellant was charged with a continuing offence under the provisions of section 20(c) of the Ordinance.  That section is in these terms :

“ Any person who—

…. for the purpose of causing annoyance, …

(c) persistently makes telephone calls without reasonable cause and for any such purpose as aforesaid,

shall be liable to a fine of $1,000 and to imprisonment for 2 months.”

3. The facts of the case as found by the magistrate were that the appellant either from his mobile telephone or home telephone had rung the victim’s mobile or house telephones on a large number of occasions during two periods, i.e. between 1 May and 14 May 2001 and subsequently between 1 June and 18 June 2001.  The number of telephone calls per day ranged from one or two up to 40 or so, and totalled eventually some 170 calls at the end of the two periods.

4. Four grounds of appeal are advanced on behalf of the appellant.  They are as follows :

(1) The finding by the magistrate that the telephone calls made by the appellant to the victim were persistent was wrong in law.

(2) The magistrate failed to consider the appellant’s evidence properly and particularly failed to consider whether the appellant was the victim of a prankster pretending to be the victim.

(3) The magistrate erred in analysing the appellant’s case.

(4) The magistrate erroneously reversed the prosecution’s onus to disprove the appellant had reasonable cause to make the telephone calls to the victim.

5. The appellant’s second and third grounds can conveniently be dealt with together.  Both grounds taken together effectively complain that the magistrate failed to properly consider the appellant’s case and evidence to the effect that he was merely returning calls made to his telephone and that there may have been some third person tricking both the appellant and the victim by telephoning the appellant and leaving the victim’s phone number as the purported caller’s telephone number.

6. The magistrate, in her Statement of Findings, specifically addressed the possibility of the appellant’s case to the effect that there may have been another person making these calls and falsely leaving the victim’s telephone number.  She said in that regard :

“ Although PW1 (the victim) in no uncertain term said that he did not page or call the Defendant, there is still a possibility that someone might try to play trick with the Defendant and left PW1’s name and telephone numbers at his pager.  In order to determine whether it is possible that the Defendant was making return calls to these messages, I have to gone through Defendant’s evidence carefully.”

She then went on to deal in considerable detail and exhaustively with the evidence relating to this possibility.  She concluded on the evidence that there was no temporal relationship between the appellant’s receipt of a call, purportedly from the victim, and his then telephoning the victim so as to allow the possibility that the appellant was making return telephone calls.  It is important to realise that there was no record of the victim’s telephone number telephoning the appellant, simply the appellant’s oral evidence in this regard because he said these calls came in through his pager and it was common ground that those pager records were not kept or not kept for any substantial time as to the phone numbers of incoming calls although they were kept as to the simple fact that an incoming call had been made.

7. Accordingly, the magistrate’s analysis of the evidence was directed to the fundamental possibilities which formed the appellant’s case, i.e. that the appellant was simply returning calls, and that these calls had been left by a prankster who in making them also left the victim’s telephone number on the appellant’s pager.

8. In her conclusion after considering the evidence, the magistrate dismissed the possibility that the calls made by the appellant to the victim’s telephone were in the nature of return calls.

9. As I have said, she examined the temporal relationship between incoming calls to the appellant’s pager and the appellant’s calls to the victim and found none.  As an example of her approach in this regard, she said :

“(4) I do not accept the 40 calls (34 calls from the Defendant’s home and 6 from the Defendant’s mobile) made to PW1 on 8^th June, 2001 were return calls because 33 calls made from the Defendant’s home telephone were made in the early morning (01:50 hours to 03:58 hours) and the other 7 calls were made from 20:23 hours to 23:43 hours while the 2 calls Defendant received were at 12:02 hours and 13:08 hours.”

Further, the magistrate said this in her Statement of Findings :

“… In considering whether there was any possibility that the Defendant was responding to calls with PW1’s name and telephone numbers left at his pager directly, I have to take account to the whole circumstance when the Defendant made these calls.  Defendant gave evidence that when he called PW1, he received two different types of message : One message was that PW1 did not exist and somebody was just playing a trick, the other message was that PW1 did exist but he was not present.  If the Defendant believed that the calls at his pager were just a trick on him, there was absolutely no reason why he would continue to make so many calls within a short interval.  If the Defendant believed that PW1 was there, after several unsuccessful attempts to reach him, why didn’t he leave a message and asked PW1 to call him back?  Why did he keep on calling continuously?

 Having considered the whole circumstances and the evidence of the Defendant, I do not accept his evidence that he was just making return calls to PW1.”

10. The reasons given by the magistrate in this regard are direct and succinct.  They revolve around the basic concept that the appellant’s case and his evidence simply made no sense because the persistent telephone calls he made to the victim bore no sensible relationship to the return of incoming telephone calls.

11. The magistrate, if she had wished, could have gone further and pointed out that the inherently incredible foundation of the defence case and the appellant’s evidence was to the effect that the appellant had genuinely, on some 170 odd occasions over some six weeks, tried to telephone and make contact with the victim, another doctor working in the same field as the appellant, but had been unsuccessful in doing so.  That may be thought to be plainly nonsensical.

12. Another complaint of the appellant is that the magistrate failed to take into account the fact that the victim received telephone calls of a persistent nature from another telephone number which could not be traced to the appellant and whose user was unknown.  But this does not, in my judgment, render the magistrate’s conclusions in any way unsafe.  Quite simply, those facts regarding that other telephone number took the case no further one way or the other.  To suggest that it supported the defence case at trial of a third party telephoning the victim is wholly speculative.  The magistrate was entitled to regard this aspect of the evidence, as she apparently did, as not being of any significant probative value.

13. The magistrate ignored also some two occasions when the appellant himself received repeated calls on his mobile phone of a substantial number from a particular telephone number on two or so days.  On each of those two or so days some 20 odd calls were received from this telephone number.

14. The defence case was that this supported the possibility that a prankster existed because the appellant was also himself a victim in the sense that on these two days or so he received repeated telephone calls but it is important to realise that the telephone number from which these calls came was the appellant’s own pager number.  In other words, the nature and origin of these calls to the appellant’s telephone was completely speculative and the evidence in no way established that they came from a single source.  The magistrate was entitled to ignore, as being of any probative value, this uncertain and speculative area of the evidence also.

15. In short, the magistrate’s analysis effectively and properly led her to the conclusion that there was no possibility the appellant was making return calls.  She further properly concluded on the evidence that the prosecution had proven beyond reasonable doubt that the appellant had no reasonable cause to make these telephone calls, and that given the number of telephone calls made and their short duration, they were made for the purpose of annoying the victim.

16. Finally, the magistrate at no time reversed the onus of proof as complained of by the appellant.  She was plainly aware the prosecution had to prove its case by establishing as one of the elements of the offence that the appellant had no reasonable cause to make these telephone calls.  In this regard, the magistrate said in her Statement of Findings :

“… I find that Prosecution has negated the defence of reasonable cause beyond reasonable doubt.  I find that the calls were made without reasonable cause.”

17. It is perhaps unfortunate that the magistrate referred to the defence of reasonable cause.  It is not a defence.  It is not a matter which has to be considered only as an issue if the evidence in the case opens it up or makes it available to a defendant.  It is an element of the offence which always has to be established by the prosecution.  But the magistrate, as a matter of fact, found the prosecution had proven the appellant had no reasonable cause and had done so beyond reasonable doubt.  Accordingly, the appellant’s complaint in this regard has no substance.

18. Nor is there any substance in the appellant’s assertion that the magistrate in commenting at the time of delivering her verdict in reference to the alleged calls received by the appellant which he says he was simply returning, that :

“If these calls did exist then I have to consider the circumstances when the appellant returned the call.”

also reversed the onus of proof.  But all she was saying, as is apparent from her verdict as a whole, is that she looked at all the evidence in determining whether any such calls may have been made.  There is no merit in grounds two to four.

19. I return now to the first ground of appeal.  That ground asserts that :

“The learned magistrate erred in finding that the prosecution has proved beyond reasonable doubt that the Appellant did make persistent telephone calls to the 1^st Prosecution Witness (‘PW1’) between 1 May 2001 and 18 June 2001 when the evidence adduced by the prosecution clearly demonstrates a discontinuation of telephone calls from the Appellant to PW1 during the period between 15 May 2001 and 31 May 2001.”

20. There was no argument before me and it was not challenged that section 20(c) creates a continuing offence.  That must be so.  To prove the element of persistence, the prosecution must establish that any defendant performed a series of disparate acts, i.e. made a series of separate telephone calls.  “Persistently” is not defined in the legislation, but it is a plain word with a plain meaning.  The various definitions of the word and its root in the Oxford English Dictionary firmly embrace the concept of a continuation of acts or a repetition of acts.

21. In the present case, by admitted facts produced before the magistrate, the prosecution was able to establish that within the charged period of 1 May 2001 to 18 June 2001, telephone calls were made from the appellant’s telephone on a very large number of occasions to the victim’s telephone.  Some 170 odd telephone calls were made by the appellant to the victim’s telephone during that time, but all of those telephone calls, according to the admitted facts and according to the telephone companies’ records admitted in evidence as P4 and P5, were made during two distinct periods.

22. The first of those periods was from 1 May to 14 May 2001.  The second period was from 1 June 2001 to 18 June 2001.  In other words, during the charged period, there was a gap of 17 days from 15 May 2001 to 31 May 2001 inclusive during which no telephone calls were shown to have been sent by the appellant to the victim.  Indeed, in her Statement of Findings, the magistrate says that the relevant period of calls made to the victim was from 1 May 2001 to 14 May 2001 and from 1 June 2001 to 18 June 2001.  She had accordingly found that two separate periods of telephone calling had occurred with a two week gap between them.

23. Mr Choy for the appellant argues that this gap must mean that the magistrate’s finding that the appellant made persistent telephone calls to the victim’s telephones over the period of the charge was wrong in law as there was absolutely no evidence to support the continuation of any such activity by the appellant throughout the charged period.  I agree with Mr Choy to a somewhat limited extent.  It seems to me that there were two separate periods of persistent telephone calls adduced in evidence.  These two periods were separated by a gap of inactivity which lasted a considerable time, i.e. 17 days.

24. Accordingly, there was sufficient evidence to allow the magistrate to find persistent telephone calls had been made by the appellant at times during the charged period, but that evidence did not establish the persistent nature of those telephone calls throughout the whole of the charged period.

25. It seems to me that to enable a charge to be properly drafted as an allegation of a continuing offence, there must be evidence of the alleged offence continuing over that charged period.  It is not fatal to the charge if the offence cannot be proven to have continued precisely within the charged period.  In other words, if the evidence establishes the offence overruns or underruns the charged period, then the offence is still made out.

26. But in the present case, it seems to me that the evidence established two separate periods of persistent telephone call-making by the appellant to the telephones of the victim within the same charged period.  A continuous offence is an offence only during the period of its continuation.  If it stops for any material period, then it is complete as an offence at the point of time when it stops.  If the acts charged start up again after that cessation, then it is not a continuation of the original offence but a new offence, given proof of its elements.  It is a matter of fact for a court to determine whether any temporal interruption to the acts constituting a continuous offence is of such a degree as to bring it to an end.

27. In the present case, there was a gap of some 17 days during which there was no actus reas at all proven against the appellant, i.e. from the magistrate’s own findings the appellant did not telephone the victim during that period.  On both sides of that gap between 1 May 2001 and 15 May 2001 and between 1 June 2001 and 18 June 2001, telephone calls were made.

28. It seems to me that it may well be that if the magistrate, and perhaps counsel’s duty was to direct her attention to this matter at trial, had considered this matter then she may well have been driven to the conclusion that there may have been evidence before her of more than one offence pursuant to section 20(c) being committed during the charged period.

29. In my judgment, evidence of two separate continuing offences was led in support of a charge which related to, in its terms, only a single continuing offence.

30. Accordingly, the charge itself was not bad for duplicity.  It being in the proper form and not in its terms alleging two or more offences : R. v. Greenfield (1973) 57 Cr.App.R.849, but the charge was defective in that it charged only one offence and the evidence revealed two separate periods of the making of persistent telephone calls.  For this reason while not formally defective in the sense of duplicity, the charge was substantially defective in that the evidence demonstrated two offences may have been committed rather than a single offence during the particularised period of the charge : R. v. Radley, 58 Cr.App.R.394 and R. v. Ballysingh, 37 Cr.App.R.28.

31. Further, section 27 of the Magistrates Ordinance provides as follows :

“(1) Where it appears to the adjudicating magistrate that there is-

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

he shall, subject to subsection (2)-

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint, information or summons.

(2) The adjudicating magistrate shall amend the complaint, information or summons where-

(a) the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

(3) Following an amendment to a complaint, information or summons, the adjudicating magistrate shall-

(a) read and explain the amended complaint, information or summons to the defendant;

(b) give leave to the parties to call or recall and further examine such witnesses as may be reasonably required by a party having regard to the nature of the amendment;

(c) grant such adjournment as may be reasonably necessary to enable the parties to call or recall witnesses and to prepare their cases;

(d) if he thinks fit, make an order that the complainant or informant shall pay to the defendant such costs, not exceeding $5000, as may be occasioned by the amendment; and

…”  (emphasis added)

32. The words “… where it appears to the adjudicating magistrate”, in my judgment, must relate to the objective reality of the charge and evidence before him and not to his subjective appreciation of it.  Accordingly, in this case, even though the variation between the evidence and the form of the charge was not brought to the magistrate’s attention, there was still a defect in the substance of the charge and, indeed for the same reasons, a variation between it and the evidence adduced in proof of it, and pursuant to the terms of section 27(1)(b), the magistrate should have either amended the charge or dismissed it pursuant to section 27(1)(b)(i) or (ii).  She did not do so.

33. But if in this case, the divergence between the evidence and the form of the charge had been brought to the magistrate’s attention in such a way as to alert her to the need for an amendment she could have amended the charge in one of two ways.  The magistrate could have split it into two separate charges, each representing one of the separate periods during which the offending phone calls were made, or the magistrate could have simply shortened the period particularised in the existing charge so as to encompass only one of those periods.

34. Section 119(d) of the Magistrates Ordinance gives this court the power to make such order as it thinks just, and by such order exercise any power which the magistrate might have exercised.  That subsection says :

“(d)  the judge may by his order confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate;”

35. Courts in the past have been reluctant to apply section 119(d) so as to amend defective charges on appeal.  That is because at trial, any such amendment requires the magistrate to comply with the provisions of section 27 including allowing, if reasonable, the defendant before him to call or recall witnesses.  That cannot be done by an appellate court in its exercising of the magistrates’ powers under section 27(3) pursuant to section 119(d).

36. Accordingly, in Fai Ma Trading Co. Ltd v. Lai (1989) 1 HKLR, the Court of Appeal held that if an information was amended on appeal from a magistrate’s conviction, the court should remit the matter back to the magistracy for a trial de novo in the normal course rather than dismissing the appeal.  In my view, that is the applicable principle in this case.  Mr Choy in that regard has urged upon me that if the charge before the magistrate was amended by me, as I propose to do, so as to limit the charged period to 1 June 2001 to 18 June 2001, that may well have, if it had been done at trial, had ramifications as to the evidence which was called.

37. I somewhat reluctantly agree that I cannot be sure that if the appellant had been tried on the proposed amended charge, the course of trial would have been identical : Chan Pui Cheung v. HKSAR, HCMA364/1999.  Mr Choy points out, for one thing, that evidence of the pre-1 June 2001 telephone calls may not have been admitted into evidence.

38. Accordingly, I have considered the nature of the offence and the public’s interest in these matters.  It may well be that this is a summary offence only, but it is an offence which can cause serious disruption to an individual, particularly if conducted over a substantial period as is alleged in this case.  For that reason, I conclude that the matter should be remitted for trial before another magistrate on a charge amended so as to particularise the charged period as being between 1 June 2001 and 18 June 2001.